For affirmance in part, reversal in part and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
This case, like State v. Masino, 94 N.J. 436 (1983), concerns the scope of the statutory definition of kidnapping set forth in our Code of Criminal Justice, N.J.S.A. 2C:13-1. Masino considered whether the substantial distance requirement for asportation or movement of a kidnapping victim was to be measured in linear or in qualitative terms. The Court held in favor of the latter:
[One] is transported a "substantial distance" if that asportation is criminally significant in the sense of being more than merely incidental to the underlying crime. That determination is made with reference not only to the distance traveled but also to the enhanced risk of harm resulting from the asportation and isolation of the victim. That enhanced risk must not be trivial. [94 N.J. at 447.]
This case considers the other predicate for a kidnapping conviction, the confinement of a victim. The specific question is whether the binding and gagging of a husband by a burglar, who proceeds to rape and rob the seven-month pregnant wife of the restrained husband, is to be regarded as "merely incidental" to the underlying crimes and thus not kidnapping under N.J.S.A. 2C:13-1b. We hold that such a criminal restraint can constitute kidnapping under the Code's definition and therefore reverse the judgment below.
The crime of kidnapping sounds simple, but as Masino demonstrated, defining it "is a task of special subtlety." Model Penal Code and Commentaries (Official Draft and Revised Comments) (hereafter "MPC") § 212.1 comment at 221 (1980); see Diamond, "Kidnapping: A Modern Definition," 13 Am.J.Crim.L. 1, 1 (1985) ("Although kidnapping is an infamous crime, perceived by the public with both dread and morbid curiosity, and the subject of fine literature, it is also a crime that has eluded meaningful definition."). In Masino we traced the common law evolution of the crime of kidnapping. At first it was an aspect of false imprisonment. Diamond, supra, at 2. It was designed to deal with the conscription of forced labor to populate the colonies. Id. at 3. Over the centuries, its substantive content has been broadened. The shocking revulsion to crimes like the Lindbergh baby's kidnapping led many jurisdictions to stiffen the penalties for kidnapping. MPC, supra, § 212.1 comment at 215. In some states the crime is punishable by life imprisonment. Diamond, supra, at 3; see, e.g., Ala.Code 1975 § 13A-6-43(c) (kidnapping in the first degree is a "Class A felony," see Ala.Code 1975 § 13A-5-6(a)(1), which is punishable by life imprisonment); Cal. Penal Code § 209(b) (life imprisonment with possibility of parole for kidnapping for robbery).
There are two basic kidnapping patterns. In one, the criminal seizes the victim and removes him or her to another place; in the other, the criminal confines the victim in the place where he or she is found. Were the latter not regarded as the moral equivalent of a kidnapping, the criminal might safely isolate a victim in the victim's "summer home in the mountains" and demand ransom with impunity. See Commonwealth v. Hook, 355 Pa.Super. 10, 13, 512 A.2d 718, 719 (1986) (quoting MPC § 212.1 comment (Tent. Draft No. 11, 1960) at 16).
Just as obviously, however, not every movement or confinement of a victim is a kidnapping. The easiest illustrations are
situations in which "the burglar puts the householder in the closet while he fills his sack with the silver," see State v. Estes, 418 A.2d 1108, 1113 (Me.1980), or in which the victim of a robbery is forced to open a safe in the home or go to the back of the store. See State v. Dix, 282 N.C. 490, 499, 193 S.E.2d 897, 902 (1973). Because courts sensed that these crimes should not be considered kidnapping, the problem became one of definition. In the absence of more precise statutes, courts supplied the necessary content.
A leading American case arose in the Virgin Islands, a jurisdiction that carried a mandatory sentence of life imprisonment for kidnapping for ransom, extortion or robbery. See Virgin Islands v. Berry, 604 F.2d 221 (3d Cir.1979). The Berry court noted the modern approach of construing kidnapping statutes "to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal." Id. at 226-27 (quoting People v. Miles, 23 N.Y.2d 527, 540, 245 N.E.2d 688, 695, 297 N.Y.S.2d 913, 922 (1969)). If not every asportation or detention rises to the level of kidnapping, it asked by what test does a court determine whether a kidnapping has taken place. The court drew on the California concept that kidnapping does not occur when the asportation or confinement is "merely incidental to" the commission of other substantive crimes and does not substantially increase the risk of harm beyond that necessarily present in the crime itself. Id. at 227 (citing People v. Daniels, 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 910, 459 P.2d 225, 238 (1969)). What each formulation seeks to guide is the qualitative judgment of juries on whether the asportation or detention that occurs during the course of the commission of another crime "significantly increases the dangerousness or undesirability of the defendant's behavior." Ibid. (citing People v. Timmons, 4 Cal.3d 411, 415, 93 Cal.Rptr. 736, 739, 482 P.2d 648, 651 (1971); Wright v. State, 94 Nev. 415, 415, 581 P.2d 442, 443 (1978); Note, "A Rationale of the Law of Kidnapping," 53 Colum.L.Rev. 540, 556 (1953); Comment, 110 U.Pa.L.Rev. 293, 296 (1961)). The Berry court
summarized these criteria in a two-part test of duration/distance and danger requirements and concluded that, despite variances in terminology, four factors were central to each of these approaches:
(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant ...